ABSA Bank Home Loans Guarantee Company (RF) (Proprietary Limited) and Another v Kamanga (EL 780/2024) [2025] ZAECELLC 3 (4 February 2025)
The court found that the defendant failed to raise any bona fide defence to the plaintiffs' claim for payment under the mortgage agreement. His offer to pay reduced instalments was not acceptable to the plaintiffs, as it would not cover the interest and would require the court to rewrite the contract, which is not...
Source-derived case information.
- Citation
- [2025] ZAECELLC 3
- Parties
- Applicant: ABSA Bank Home Loans Guarantee Company (RF) (Proprietary Limited); Applicant: ABSA Bank Limited; Respondent: Kondwani Titus Kamanga
- Court
- Eastern Cape High Court, East London Local Court
- Jurisdiction
- South Africa
- Case Number
- EL 780/2024
- Procedural Posture
- Summary Judgment Application / Application for Summary Judgment Before the High Court
- Outcome
- Summary judgment granted in favour of the first plaintiff for the amount claimed, with interest and costs.
- Judges
- B Hartle
- Legal Topics
- Summary Judgment, Mortgage Enforcement, National Credit Act, Contractual Obligations
Source-derived case record
Summary, issues, holding and outcome
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Parties
ABSA Bank Home Loans Guarantee Company (RF) (Proprietary Limited)
Applicant
ABSA Bank Limited
Applicant
Kondwani Titus Kamanga
Respondent
Procedural Posture
Summary Judgment Application / Application for Summary Judgment Before the High Court
Legal Issues
- 1 Whether the defendant has raised a bona fide defence to the claim for payment under the mortgage agreement.
- 2 Whether the plaintiffs are entitled to summary judgment for the amount claimed.
- 3 Whether the defendant's offer to pay reduced instalments affects the plaintiffs' contractual rights.
Ratio Decidendi
The court found that the defendant failed to raise any bona fide defence to the plaintiffs' claim for payment under the mortgage agreement. His offer to pay reduced instalments was not acceptable to the plaintiffs, as it would not cover the interest and would require the court to rewrite the contract, which is not permissible. The plaintiffs demonstrated compliance with section 129 of the National Credit Act by considering the defendant's proposal. As the defendant conceded his arrears and did not dispute the particulars of claim, the plaintiffs were entitled to summary judgment for the amount claimed, interest, and costs.
Court Disposition
Summary judgment granted in favour of the first plaintiff for the amount claimed, with interest and costs.
Orders
- The defendant is to pay the sum of R5 590 996.40 to the first plaintiff.
- The defendant is to pay interest on the amount of R5 590 996.40 at the prime lending rate plus 1.25% per annum from 22 December 2023, calculated daily and capitalized monthly, to date of final payment, both dates inclusive.
Full Case Text
Judgment text and source record
34 paragraphs
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)
NOT REPORTABLE
CASE NO. EL 780/2024
In the matter between:
ABSA BANK HOME LOANS GUARANTEEE COMPANY (RF) (PROPRIETARY LIMITED) (Registration Number : 2003/029628/07) First Applicant (Plaintiff) ABSA BANK LIMITED (Registration Number : 1986/004794/06) Second Applicant (Plaintiff) and KONDWANI TITUS KAMANGA Identity Number : 7[…] Respondent/Defendant
JUDGMENT IN RESPECT OF APPLICATION
FOR SUMMARY JUDGMENT
HARTLE J
[1] In this application for summary judgment the plaintiffs seek only a monetary judgment against the defendant in favour of the first plaintiff.
[2] The defendant appeared in person.
[3] He filed a “notice of intention to plea” in which he in essence puts forward reasons for his default and pleads with the plaintiffs not to execute against the mortgaged property because it is his primary residence. He also notes that he made an offer to pay reduced instalments to bring his arrears up to date.
[4] It is abundantly plain from the plea that he has raises no real defence to his indebtedness. As for the contention that he made an offer, the principal deponent on behalf of the first plaintiff
states that his offer was not acceptable to the bank because the monthly instalment tendered would not even cover his interest on the mortgage loan. The plaintiffs fairly point out that the defendant is asking the court unilaterally to rewrite his contract and impose new contractual obligations on them for him to pay his monthly bond payments according to what he can afford as opposed to what he is contractually obligated to pay.
[5] The offer, ostensibly engaged with by the plaintiffs, is not acceptable to them. I am further satisfied that the plaintiffs have not merely paid lip service to the defendant’s section 129 rights. They have actually considered his proposal to bring the payments under the agreement up to date.[1]
[6] The defendant conceded that he is in arrears and can offer no retort to the particulars of claim regarding the alleged breach of contract and/or the fact of his indebtedness in the extent claimed.
[7] The plaintiffs are certainly entitled to their judgment, which I hereby grant.
[8] The matter appeared before me on a busy motion court day. I reserved my ruling but due to a fortunate stroke of serendipity for the defendant I took ill and was absent from the bench for a lengthy
period.
[9] The defendant has hopefully in this intervening period had an appropriate opportunity to bring up the arrears on his instalments which would entitle him to have the agreement reinstated within the meaning contemplated in section 129 (3) and (4) of the National Credit Act, this notwithstanding the plaintiffs’ success in the application.
[10] In the premises, I make the following order:
1. The defendant is to pay the sum of R5 590 996.40 to the first plaintiff.
2. The defendant is to pay interest on the amount of R5 590 996.40 at the prime lending rate plus 1.25% per annum from 22 December 2023, calculated daily and capitalized monthly, to date of final payment, both dates inclusive.
3. The defendant is to pay the costs of suit on the agreed attorney and own client scale.
B HARTLE
JUDGE OF THE HIGH COURT
DATE OF HEARING
: 17 SEPTEMBER 2024
DATE OF JUDGMENT : 4 FEBRUARY 2025
Appearances:
For the Plaintiffs : Mr. D Kotze instructed by McWilliams & Elliot Inc,. c/o Bax Kaplan, East London (ref. Mr. J de Klerk).
For the Defendant : In person.
[1] Section 129 (1)(a) of the National Credit Act, No. 34 of 2005.